Murphy v The Queen
[2005] NZCA 283
•23 November 2005
IN THE COURT OF APPEAL OF NEW ZEALAND
CA198/05
THE QUEEN
v
ALLAN TONY MURPHY
Hearing:26 October 2005
Court:Chambers, Williams and Rodney Hansen JJ
Counsel:M N Pecotic for Appellant
M D Downs for Crown
Judgment:23 November 2005
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS
(Given by Chambers J)
Importing methamphetamine
[1] Vanessa Reynecke brought 650 grams of 77% pure methamphetamine into New Zealand on 9 May 2004. The drugs were concealed within a false lid in a suitcase. The method of concealment was such that initially the suspicious Customs officers could not detect the drugs even with the aid of an x-ray machine. It was only when a persistent officer drilled a hole in the lid that the drugs were discovered.
[2] Ms Reynecke agreed to deliver the drugs as planned. She went to a hotel room, which the police wired for picture and sound. There she met her contact. That contact was Allan Murphy, the appellant.
[3] The entire incident in the hotel room was videoed. There was a lengthy conversation between Mr Murphy and Ms Reynecke. It was clear to the trial judge, Simon France J, that Mr Murphy knew well the man in Bali who had given the drugs to Ms Reynecke for importation into New Zealand. Mr Murphy confirmed to Ms Reynecke that she would shortly be making a further trip. He advised her that, whenever she came to New Zealand, he would always be the one to meet her.
[4] After this conversation, Mr Murphy attempted, unsuccessfully, to get the drugs out of the bag. The efficiency of the concealment, which had nearly thwarted the Customs officer, did defeat Mr Murphy. In the end, he decided to leave with the suitcase. At that point he was arrested.
[5] Mr Murphy was charged with importing methamphetamine, a class A drug, and with possession of methamphetamine for supply. (The same methamphetamine was the subject of both charges.) He was also charged with conspiracy to import methamphetamine: the basis of that charge was the conversation with Ms Reynecke when Mr Murphy referred to plans for future importations.
[6] Mr Murphy pleaded not guilty, but a jury found him guilty on all three charges.
[7] Simon France J sentenced Mr Murphy to 16 years’ imprisonment on each of the importing and possession for supply charges. He sentenced him to five years’ imprisonment on a charge of conspiracy to import. The sentences were concurrent. Pursuant to s 86 of the Sentencing Act 2002, he imposed a minimum period of imprisonment of nine years.
[8] Mr Murphy has appealed against his sentence.
Issues on the appeal
[9] There are three issues on the appeal.
[10] The first is whether the judge’s starting point of 14 years’ imprisonment on the importation charge was manifestly excessive. Ms Pecotic, for Mr Murphy, submitted that the starting point should have been no higher than 12 years’ imprisonment, the starting point adopted by Winkelmann J in R v Slabbert HC AK CRI 2004-092-7488 3 March 2005 at [15].
[11] The second issue is whether Simon France J was justified in adding two years’ imprisonment for the conspiracy charge. Ms Pecotic submitted that that was excessive, given that the planned importations never took place.
[12] The third issue was whether the judge should have provided a discount for mitigating factors. He allowed nothing because he did not think there were any mitigating factors.
[13] We shall deal with the issues in turn.
Starting point too high?
[14] Simon France J identified “the relevant range…as being 12-15 years”: HC AK CRI 2004-004-009111 3 June 2005 at [31]. In reaching that conclusion, His Honour relied principally on R v Arthur [2005] 3 NZLR 739 (CA) and two High Court sentencing decisions, R v Wickremasinghe HC AK T013408 28 March 2003 and R v Shaida and Graaf HC AK CRI 2004-004-6330 and CRI 2004-004-6746 21 September 2004. He considered that Mr Murphy fell between the category of courier and ultimate organiser, with the consequence that he regarded Mr Murphy as “coming at the top of the second category identified in Wickremasinghe (para [25])”. After comparing the quantity of drugs involved in this case with the quantity involved in Shaida, he ultimately reached a starting point of 14 years’ imprisonment.
[15] Arthur was a supply case. Arthur suggested three bands, depending upon the amount of methamphetamine supplied. The bands were:
·Band 1 (low level supply): less than 5 grams
·Band 2 (commercial quantity): 5-250 grams
·Band 3 (large commercial quantity) 250 grams plus
[16] The starting points for the three bands, so far as supply is concerned, were:
·Band 1: two to four years’ imprisonment
·Band 2: three to nine years’ imprisonment
·Band 3: eight years’ imprisonment or more
[17] In fixing those starting points, the court said that it had taken great cognisance of the High Court sentencing decisions which were listed in the schedule to the judgment: at [15]. The court went on to explain why it considered it appropriate “to place significant emphasis on what the trial court has been doing”. The court also said that, in fixing the starting points, it had “considered leading authorities in the English, Canadian, and Australian jurisdictions”: at [16].
[18] The court then went on to say at [27]:
We also stress that the suggested starting ranges are limited to supply cases. Those who manufacture or import class A drugs may well incur higher sentences – indeed, much higher sentences – as they are responsible for actually bringing the illegal substance into existence or into the jurisdiction…
[19] Since we heard this appeal, this court has delivered a guideline judgment on methamphetamine offending: R v Fatu CA415/04 18 November 2005. In Fatu, the court approved the sentencing bands proposed in Arthur, with one modification: at [33]. That modification was to split band 3 (“large commercial quantity”) into two bands: band 3 became “large commercial quantity (250-500 grams)” and band 4 became “very large commercial quantity (500 grams or more)”. That subdivision of the “large commercial quantity” category had, in fact, been presaged in Arthur at [23].
[20] The court also approved the starting points given in Arthur, with appropriate adjustments to the sentencing range for band 3 to reflect its split into two bands. The court also endorsed the principle enunciated in Arthur that those who manufacture or import class A drugs will incur higher sentences than those who merely supply. The court said at [22]:
All other things being equal, a manufacturer is more culpable than an importer and an importer is more culpable than a supplier. A drug manufacturer (or importer for that matter) is responsible for bringing the drugs in question into circulation in New Zealand and his or her culpability may usually fairly be regarded as being greater than a dealer in drugs. This is consistent with the approach taken in R v Aramah (1982) 4 Cr App R(S) 407. Another way of looking at it is that a drug manufacturer can be regarded, at least normally, as being at the top of the supply chain. This was the approach taken in Cabassi v R [2000] WASCA 305 at [10].
[21] The court went on to flesh out what the increase should be for importation cases. The court said:
[35] For offending involving the importation of methamphetamine, we regard the Arthur bands as being broadly appropriate but with uplifts of 10% - 20% in the starting point sentences contemplated.
[36] The result is that we adopt the following sentencing bands in cases involving the importation of methamphetamine:
(a)Band one – low level importing (less than five grams) – two years six months to four years six months imprisonment.
(b)Band two – importing commercial quantities (five grams to 250 grams) – three years six months to ten years imprisonment.
(c)Band three – importing large commercial quantities (250 grams to 500 grams) – nine years to 13 years imprisonment.
(d)Band four – importing very large commercial quantities (500 grams or more) – 12 years to life imprisonment.
As indicated, in cases where small quantities of methamphetamine have been imported for personal consumption, it is open to sentencing Judges to treat band one as not applicable. We emphasise that these bands are otherwise applicable to all who import methamphetamine, including those whole roles are as “mules”. Obviously the more significant the role of the offender in the importation, the closer the appropriate sentence will be to the top end of the relevant sentencing band.
[22] The present case falls within band 4. Simon France J’s range can be seen to coincide neatly with band 4 of Fatu. He ultimately chose 14 years as the appropriate point within his range, largely on the basis that Mr Murphy was more than a mere mule. Simon France J described Mr Murphy as “a significant player in a drug importation organisation”. He went on at [26]:
Your role was to be involved in the planning, and to be the person who received the drugs in New Zealand from the courier, and then did whatever was to happen next. Your level of involvement was such that at the time of this importation you were aware of the plans for future importation. You were in my view, as I say, a high ranking trusted lieutenant.
[23] As Simon France J had presided over Mr Murphy’s trial, he was in an excellent position to assess Mr Murphy’s ranking within the drug importation organisation. Ms Pecotic could not dispute the judge’s assessment on that question. Since Mr Murphy was clearly more than a mere courier or mule, it was appropriate to shift to the higher end of the range when fixing the starting point. A starting point of 14 years’ imprisonment was in broad alignment with the other cases to which the judge referred. As it turns out, it was also right on target in terms of Fatu.
[24] Ms Pecotic, in support of the appeal, referred us to not only Slabbert but four other High Court sentencing decisions. It is rarely helpful in this court to cite High Court sentencing decisions, except in circumstances where this court is engaged in preparing a guideline judgment or is otherwise conducting a thorough review of sentencing with respect to a particular type of offending. It is much better to focus on appellate authorities. Even there, there can be regrettable inconsistencies, rendering reliance on isolated unreported decisions suspect. Of course, in this area now, Fatu will be the guiding authority.
[25] Out of deference, however, to Ms Pecotic, we do refer to Slabbert, given that that was the case on which she placed primary reliance. Her advocacy of a 12 year starting point was based on the fact that Winkelmann J had adopted a 12 year starting point in Slabbert. But this case and Slabbert are not really comparable. First, Slabbert involved the importation of cocaine. Whether sentencing levels for cocaine and methamphetamine should align exactly is a question yet to be resolved, as this court has emphasised in Fatu at [46]. Secondly, Mr Slabbert was a courier (albeit one with a previous conviction for the importation of cannabis): he was not “a high ranking trusted lieutenant” of a drug importation organisation. Even assuming, therefore, the importation of cocaine is to be seen as on all fours with the importation of methamphetamine, the offenders’ roles in the importations were different. Simon France J’s decision is not at variance with Slabbert.
[26] For all these reasons, we find that the starting point was not manifestly excessive.
The additional penalty for the conspiracy charge
[27] The judge sentenced Mr Murphy to five years’ imprisonment on the conspiracy to import charge. But he did not add five years’ imprisonment onto the penalty imposed in respect of the importation which actually occurred. Rather, the judge added on only two years’ imprisonment. That was no doubt a reflection of the well-known “totality” principle.
[28] Ms Pecotic did not challenge the five year term, but she did challenge the uplift. She summarised her submission in this way:
With respect to any “future enterprises”, it is respectfully submitted that in reality this did not occur, furthermore that the possibility of any future transactions taking place is subject to many variables which could well impact on the role (if any) that Mr Murphy may have played.
[29] We cannot accept that submission. Of course, the future importation or importations to which Mr Murphy referred in his discussion with Ms Reynecke did not take place – or, at least if it did, Mr Murphy was not available to play his role in it. But conspiring to import is in itself a serious offence, carrying a maximum term of imprisonment of seven years. Mr Murphy’s role as “a high ranking trusted lieutenant” in that conspiracy justified the additional sentence to which he was subjected.
[30] We reject Mr Murphy’s complaint on this score.
Mitigating circumstances
[31] Ms Pecotic submitted that the following features warranted a reduction in the sentence imposed:
“ · Mr Murphy is 44 years old.
·Mr Murphy has support from family and friends. There are numerous references attesting to Mr Murphy’s work ethos, and family life on the Court file.
·Mr Murphy has three children, two of whom are talented sports athletes. His daughter represented New Zealand internationally.
·Mr Murphy had excelled in the fishing industry, which abruptly ended as a result of a knee injury.
·Mr Murphy owned his own home.
·The effect of his offending on his family has been profound. His daughter has left New Zealand, his wife has had a nervous breakdown, his sons and extended family have also been affected.
·Mr Murphy has drug issues which need to be addressed.”
[32] None of those represents a mitigating factor in drugs cases. The judge was right to find that there were no mitigating factors.
Result
[33] None of the grounds of appeal is made out. The sentence imposed was not manifestly excessive. We dismiss the appeal.
Solicitors:
Crown Law Office, Wellington
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